I

Redacted (sometimes hereinafter "the appellant") challenges a decision of the Division of Social Services to terminate his Medicaid
Program benefits after January 31, 2005.

DSS contends that he is ineligible based on its rule at DSSM 14100.6 because he did not keep an appointment or return an application by
January 11, 2005.

The appellant contends that he did return an application form (late). He called DSS about this requirement and spoke to a temporary
employee. His case is that he is diabetic and needs the support offered by the Medicaid Program to purchase diabetic supplies required to
manage his illness.

II

By notice dated January 18, 2005 [Exhibit # 1] DSS proposed to terminate the appellant's Medicaid because he did not keep an appointment
or return an application to renew his claim for Medicaid by January 11, 2005.

Thereafter the appellant filed a timely request for a fair hearing and asked for aid pending this hearing decision.

Despite the request, DSS did not reinstate aid as required under its rule at DSSM 5301. I directed DSS at the hearing to reinstate aid
pending a final hearing decision.

The hearing was conducted on March 29, 2005 at the Lewis Building at the Department of Health and Social Services in New Castle.

This is the decision resulting from the hearing.

III

The Division of Social Services of the Department of Health and Social Services operates the Medicaid Program under Title XIX of the
federal Social Security Act and under the authority it derives from 31 Del. C. §502(5), §503 (b), and §505 (3). The
Medicaid Program provides support for medical services received by defined groups of low-income families and individuals. Persons who
meet income and status eligibility tests, such as age, citizenship, and residency, may participate in the program. Participants qualify
for payment for a wide range of medical services.

The appellant receives aid pursuant to DSSM 16110. This is a demonstration Medicaid Program that provides aid to low income uninsured
individuals.

The appellant's case for this hearing is that he is an uninsured person and has a need for treatment of diabetes. A need for a service
covered by the Medicaid Program is not, by itself, a qualifying factor. Medicaid eligibility in Delaware is based largely on certain
financial criteria. The appellant's uninsured status is not in dispute. This is one of several eligibility criteria which must be met for
the appellant to qualify for continued coverage.

IV

Based on the testimony received for the hearing, the appellant filed a timely request for a fair hearing. DSS did not reinstate aid
pending this hearing decision as required by the law. The testimony of Stephanie Chelotti is that she asked her supervisor, who is not
present for this hearing, about reinstating the appellant's Medicaid and was told not to do this because the appellant's eligibility for
reinstated benefits was contingent on his eligibility for Medicaid. As support for this position DSS points to the termination notice
itself. [Exhibit # 1] On the last page of the notice is the statement, checked by the appellant, which reads: "I WANT to continue
receiving the benefits I now receive, if eligible." [Emphasis added]

The contingent condition "if eligible" lacks any support in the rules and is at odds with the law.

The DSS rule at §5305 (1) provides that:

If a request for a hearing is filed within the timely notice period (the period between the date a notice is mailed and the effective
date of the action), benefits will not be reduced or terminated pending a decision on the appeal.

This rule does not contain a provision that an appellant be eligible in order to qualify for reinstatement of aid pending a hearing
decision.

The State rule implements the United States Supreme Court decision in Goldberg v. Kelly, cited herein. In Goldberg the Court stated that:

"The question for decision is whether a State which terminates public assistance . . . to a particular recipient without affording him
the opportunity for a [fair hearing] prior to termination denies the recipient procedural due process in violation of the Due Process
Clause of the Fourteenth Amendment."

The Court concluded that a pre-termination hearing was a constitutionally-based requirement, stating that:

"Under all the circumstances, we hold that due process requires an adequate hearing before termination of . . . benefits. . ."

Therefore, the DSS position that a recipient facing termination of benefits must be eligible for benefits in order to have them
reinstated pending a fair hearing decision is, in addition to lacking a basis in logic, unlawful.

Consequently, I instructed DSS at the hearing to reinstate benefits as required under the State rules at DSSM 5301 and 5305 (1).(See
Goldberg v. Kelly, United States Supreme Court, 397 U.S. 254 (1970)) This is because the appellant is entitled to a pre-termination
hearing on the issues announced in the termination notice.

V

Based on the testimony received for the hearing I find that, while the appellant missed the January 11, 2005 deadline, he called DSS and
spoke to an individual, probably a temporary employee, and completed a delinquent application. The testimony of Stephanie Chelotti is
that she received the appellant's application renewal of January 19, 2005, one day after the termination notice was sent. The renewed
application contained wage stubs. The amount of the appellant's income was entered into the DSS data base with the result that the
appellant was found not to be financially eligible. As noted above, the issue of financial eligibility is not properly before me since
financial eligibility is not mentioned in the termination notice that prompted the request for a fair hearing.

Under the rule at DSSM 14100.6, cited in the termination notice, a periodic review of eligibility is required. Failure to complete and
return a DSS application is a ground for discontinuance of aid. However, also under §14100.6: "Medicaid coverage should not
terminate without a specific determination of ineligibility."

Based on the testimony received for the hearing, the appellant did not "fail" to complete and return an application form. He misplaced
the application form, called DSS to obtain another form, and returned a completed form late.

When DSS supplied the appellant with another application form at his request the agency extended the time for him to complete the
redetermination.

The completed form was received on January 19, 2005, one day after DSS issued a termination notice. On January 20, 2005 DSS issued a
"denial" notice. The "denial" notice was generated by the DSS automated benefit determination system which actively determines program
eligibility but is not self-organizing.

The "denial" notice announces the "denial" of the appellant's "application" on the wholly different ground that the appellant's income
from employment exceeds an income eligibility limit set for participation in the Medicaid Program. The factual statement in the notice
that an application was denied is a misstatement of the facts of the matter.

I have not admitted the "denial" notice issued by DSS and dated January 20, 2005. This notice announces that the appellant is ineligible
for continued Medicaid Program coverage because of the amount of his earnings from employment as a graphic designer with Tylaur Inc.

I have also excluded from consideration the statements and references in the DSS §5312 hearing summary to financial eligibility
because the summary shifts the issue from non-renewal of a required periodic application for aid to the issue of financial eligibility,
an issue not announced in the January 18, 2005 termination notice.

The issue before me for this hearing is whether the appellant's Medicaid should be discontinued because of his non-completion of a review
by a deadline announced in the January 18, 2005 notice (The deadline in the notice is January 11, 2005. There is no documentary evidence
offered for the hearing record that the appellant was put on notice of the January 11, 2005 deadline before the January 18, 2005 notice
was given.), not the appellant's financial eligibility or ineligibility. As noted above, the action can not be sustained on this record
because the appellant's missed deadline does not constitute a failure to comply as required under DSSM 14100.6. It was not an omission of
performance but a tardy performance. In addition, the decision not to reinstate the appellant's benefits pending a pre-termination
hearing is a denial of due process and inconsistent with the rules.

V

For the reasons given above, the decision by the Division of Social Services to deny the appellant's request for reinstatement of aid
pending a pre-termination hearing is reversed.

Because of this due process violation the action is remanded to DSS for further consideration.

Date: April 1, 2005

ROGER WATERS
HEARING OFFICER

THE FOREGOING IS THE FINAL DECISION OF THE DIVISION OF SOCIAL SERVICES

POSTED
RW

cc:
Redacted
Sherry Johnson for DSS

EXHIBITS

Exhibit # 1 (two pages) is a copy of a DSS termination notice dated January 18, 2005. This is admitted as evidence of the basis for
the decision to terminate the appellant's Medicaid effective after January 31, 2005.

Exhibit # 2 is the appellant's request for a fair hearing and request for aid pending a hearing decision. This is admitted as
evidence of a timely request for a fair hearing.

Exhibit # 3 (two pages) is a DSS hearing summary dated 2/14/05. This is excluded as a §5312 business record because it shifts
the issue to be decided for the hearing from non-renewal of an application for Medicaid to non-eligibility for Medicaid based on the
amount of the appellant's income.